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By Lindsay Frazier; Staff Member (Vol. 16)
Picture this: You walk into your favorite brunch spot on a Sunday morning at 11:45 a.m. with a group of friends. You decide to partake in a traditional brunch activity and order a mimosa to go with your food. The waitress proceeds to inform you that the restaurant cannot serve alcohol to patrons before noon on a Sunday. Before this summer, this scenario occurred at every restaurant in North Carolina. The passage of Senate Bill 155, also known as the Brunch Bill, now allows restaurants to serve alcohol beginning at 10 a.m., subject to a decision by local government entities.
Towns and cities such as Raleigh, Carrboro, Hendersonville, and Chapel Hill quickly passed ordinances allowing the sale of alcohol starting at 10 a.m. on Sundays, but other areas of the state did not move as quickly. In New Bern, where the city ordinance failed on its first attempt at passage, a city alderman called the bill “another invasion on a Sunday, which is a religious day for a lot of people.” Others expressed concern that the bill’s passage would deter people from going to church. Such comments from elected officials raise questions of the separation of church and state concerning laws that are often decided in ways that benefit or are motivated by religion.
Blue Laws and the Constitution
Laws that prohibit or limit certain activities on Sundays, including those affecting alcohol sales, are commonly known as “blue laws.” Blue laws have long been subject to attack on constitutionality grounds, but the United States Supreme Court has ultimately upheld them in a variety of cases.
In McGowan v. Maryland, the Supreme Court did not strike down blue laws in Maryland, which prohibit the sale of drugs, tobacco, and newspapers on Sunday, based on the grounds that laws with religious origins are not unconstitutional if they have a secular purpose. The McGowan court further stated that the Constitution does not ban federal or state regulation of conduct whose reason or effect merely happens to align with the teachings and/or beliefs of some religions (such as observing Sunday as a holy day). The Court concluded that most Sunday closing laws lean toward a secular purpose, as they provide a uniform day of rest for all citizens. Other blue law cases heard by the Supreme Court have upheld a prohibition on sales of certain goods on Sundays or mandatory Sunday store closings for certain businesses; for example, in Braunfeld v. Brown the Supreme Court upheld a Pennsylvania law that only allowed certain stores to open on Sundays.
Did the Supreme Court Get It Right?
The reasoning of the Court in these blue law cases skirts past Establishment Clause issues by stating that these laws have a secular purpose. This argument seems questionable when it comes to closing stores on Sundays or only being able to sell certain items; after all, other religions may have different holy days that are not Sundays (Seventh Day Adventists and members of the Jewish faith both observe Saturdays as a holy day). Thus, laws prohibiting activities on Sunday appear to be made with those of the Christian faith in mind.
Even if the “secular purpose” reasoning advanced by the Court holds up in regard to Sunday closing laws, it is hard to apply that reasoning to laws prohibiting the sale of alcohol before noon on Sundays because there appears to be no real secular purpose that benefits the general public. Prohibiting alcohol sales before noon on Sundays is not the same as providing a uniform day of rest, as you can buy alcohol any other day at any other time. For that matter, you cannot buy alcohol at 11:59 AM on a Sunday in some North Carolina cities, but you can a minute later at 12:00 PM.
A disconnect quickly appears once the McGowan reasoning is applied to blue laws prohibiting the sale of alcohol on Sundays. With store closings, the public at least gains a benefit in the form of a day off from work. Prohibiting alcohol sales, on the other hand, takes away something that is otherwise legal for those over twenty-one years old and not driving. The public gains no benefit with prohibiting alcohol sales on Sunday, and it appears that most secular purpose arguments would fail. For instance, it is difficult to argue that the secular purpose is a concern for safer roads when people can drink any other day of the week or any time after noon on a Sunday.
Conclusion
Maybe it is time for the Supreme Court to change course, at least when it comes to blue laws relating to the regulation of alcohol sales, as these laws do not seem to fit the secular purpose requirement. If the federal government continues to leave decisions regarding blue laws up to state legislatures, then North Carolina has taken the right step in passing Senate Bill 155. By allowing the sale of alcohol before noon in North Carolina, the state is moving away from laws that appear to raise serious concerns about the separation of church and state, when it comes to the motivation for their passage. While it is still problematic that local lawmakers are deciding whether or not to pass these laws based on their religious convictions, at least the option to allow Sunday alcohol sales now exists in the state.
First Amendment Law Review 
